A tredestinação das receitas da contribuição ao RAT: uma análise da arrecadação à luz da proporcionalidade

Abstract

This study analyzes the allocation of revenues from the RAT (Occupational Environmental Risk) contribution according to its constitutionally established purpose and investigates whether the principle of proportionality can limit its collection. Based on the Brazilian Federal Constitution of 1988 (CRFB/88) and the understanding of the Federal Supreme Court (STF), it was identified that the constitutional power to tax authorizes the institution of special contributions with a specific purpose: to finance government actions in the social or economic areas. This purpose legitimizes the collection of tax. Specifically regarding the RAT, it is found that its constitutional basis is article 7, XXVIII, of the CRFB/88, which is why its institution dispenses with the requirement of a Complementary Law (article 195, §4º and article 154, I, of the CRFB/88). Article 7, XXVIII, of the CRFB/88 determines that RAT revenues must exclusively cover benefits arising from incapacity for work, guaranteeing workers “insurance against occupational accidents.” However, Law No. 9,732/98 amended article 22, Section II, of Law No. 8,212/91 to stipulate that the RAT will also be used to pay special retirement benefits. Through an analytical comparison between RAT revenues and expenses with accident benefits, it was found that there was an excess collection of R$155 billion in the period from 2009 to 2021. This untying of RAT revenues violates the principle of proportionality, as it is inappropriate, unnecessary, and disproportionate. In addition, the untying of its revenues is unconstitutional and undermines society's confidence in the constitutional order, given that this practice occurs without the consent of the Constituent Legislator. Historically, there has been a culture of redirecting contribution revenues within Brazilian budgetary policy. This practice is immoral and constitutes "tax-financial fraud." It is essential to take social contributions seriously, ensuring that the specific purposes stipulated by the constitutional text are respected, under penalty of serious violation of social rights and human dignity. Tax Law must be approached in conjunction with Financial Law to ensure that the collection and allocation of taxes are in accordance with constitutional principles.